Progress Report of the Convention Commission

Since our last report in September of 1999, the Constitution Convention Commission has been working diligently to secure approval of the revised constitution adopted by the delegates from the Bureau of Indian Affairs. After nine months of review by two separate field offices, the Solicitor’s office, and several internal levels in the Washington central office, the Commission was successful in receiving a preliminary response on December 7, 1999. Much to our disappointment, the Bureau granted no approval of the revised constitution as we had hoped, but instead furnished the Commission with a list of concerns which the Bureau feels need to be addressed before approval will be considered. The Bureau categorized its review of the document into two sections: (1) Articles in need of change, and (2) Articles where changes are recommended. Listed below is a summary of the areas the Bureau feels need to be changed:

1. Article II - Territorial Jurisdiction: The Bureau is requiring a verification of the territorial jurisdiction boundaries articulated in Article II by the Field Solicitor’s office prior to final approval.

2. Article III - Bill of Rights: The Bureau feels that this section omits “important provisions” of 25 U.S.C. §1302 (the Indian Civil Rights Act) but does not articulate the elements it feels are missing.

3. Article IV - Section 1 - Citizenship: The Bureau feels that changing the term “member” to “citizen” causes confusion. In addition, with respect to the paragraph recognizing the sovereign rights of the Cherokee, Shawnee, and the Delaware Cherokees, the Bureau asserts the proviso in the second sentence of the provision is ambiguous and should be stricken.

4. Article VI - Legislative - Section 3: The Bureau is of the opinion that our constitution cannot preclude Freedmen Cherokee from voting or holding office. In addition, the Bureau feels the constitution does not adequately address:

(1) When the first election of the 17 Council members is to take place;

(2) How staggered terms will be implemented; and,

(3) How the increase in the number of Council members from 15 to 17 will be handled.

Article VI - Legislative - Section 7: Relying on language found in Section 28 of the Act of April 26, 1906, 34 Stat. 137, ( the Five Civilized Tribes Act), the Bureau has taken the position that Secretarial approval of all acts, ordinances, or resolutions of the Tribal Council (except resolutions of adjournment) must be required and offered the following substitution language:

“The Council shall have the power to establish laws which it shall deem necessary and proper for the good of the Nation, which shall not be contrary to the provisions of this Constitution or Federal law and shall be approved by the Secretary of the Interior as required by Federal law.”

In addition to these requirements, the Bureau also set forth a number of articles where it felt changes would be recommended:

1. Article VI - Legislature - Section 10: The Bureau feels that the original language of “No enactment shall become a law after final adjournment of Council unless approved by the Principal Chief within 15 days after such adjournment” should be reinserted.

2. Article VII - Executive - Section 14: The Bureau recommends this Section be changed to incorporate requirements of qualification background checks for tribal law enforcement officers and recommended the following language:

“subject to a favorable background and criminal history report processed by a properly designated adjudicating official of the Cherokee Nation” to be added to the second sentence.

The Bureau also recommended inserting “properly trained and commissioned law enforcement” before “officers” in the second sentence.

“All adult citizens of the Cherokee citizens of the Cherokee Nation, eighteen years of age or older on election day, shall have the right to vote in general and special elections in accordance with voting registration requirements and procedures as may be enacted by the legislation.“

4. Article XV - Initiative, Referendum, and Amendment: The Bureau recommends that language be reinserted in Section 10 of Article XV, requiring approval by the President of the United States or his authorized representative for future amendments or new constitutions to become effective.

On December 14, the Principal Chief’s office received an official copy of the Bureau’s response, issued through the Eastern Oklahoma Regional Office (Muskogee Area Office), which included the technical reviews conducted by the various field offices involved. The content of the official letter was unchanged from the preliminary response outlined above.

Meeting with BIA. In response to these recommendations and requirements Principal Chief Chad Smith arranged a meeting with Assistant Secretary Kevin Gover in Washington D.C. to seek clarification and discussion of these issues. On December 17, 1999, a meeting was conducted in Washington D.C. with Assistant Secretary Gover and staff members, Commission Officers, the Principal Chief and other interested tribal officials and invitees attending. Discussions principally focused on the Bureau’s requirements involving the Freedmen issue and Secretarial approval of tribal legislative enactments. Chief Smith requested that these two requirements be reconsidered and withdrawn by the Assistant Secretary, which he agreed to review within two weeks. To date no official action has been taken to either modify or withdraw the Bureau’s requirements.

Next Course of Action. With the BIA’s unwillingness to approve of our document as presented, and given its extreme mandates which have a direct impact on our tribal sovereignty, we must now carefully weigh our options. It must be emphasized that the objections raised by the BIA can be categorized into three areas: suggested language changes, mandated language changes, and mandates for the ratification process. Both suggested and mandated language changes must be addressed by our convention. The mandate regarding the ratification process is a more global issue that involves every branch of our Government. This issue must be addressed first and may require cooperation from all branches of government.

The Commission took up this question at its regular meeting on February 11, 2000. A number of options were discussed, including: seeking approval from a higher authority (e.g. President of the United States or Congress); submitting the revised constitution for referendum vote without BIA approval; and initiating action to repeal the approval requirement contained in the 1976 Constitution. After careful deliberation the Commission voted to take advantage of the Bureau’s current policy of “getting out of the amendment approval business” and seek repeal of the approval requirement contained in the 1976 constitution. To carry this out the Commission intends to approach the Tribal Council and propose it enter into a cooperative effort with the Commission to exercise the Council’s independent constitutional authority and sponsor a single amendment to the 1976 Constitution which would remove the necessity of approval by “the President of the United States or his authorized representative” (Article XV Section 10). Such an amendment, if ratified at a special election, would lift our self-imposed requirement of BIA approval and render its requirements for the ratification process moot. The convention process would then be free to move forward to complete the work of the people without BIA involvement.

The Commission feels that this course of action is the most judicious and pragmatic under the circumstances and would minimize the long-term risk of political and legal challenges to our constitution in the future. Despite the setbacks caused by the Bureau, our continuing pledge is to bring the convention process to a successful conclusion and place the revised constitution before the Cherokee people for their ratification.